ELR Citation: ELR 20418
No(s). 86-CV-520 (N.D.N.Y. Nov 25, 1987)

The court holds that a surface impoundment for hazardous waste is subject to regulation under the Resource Conservation and Recovery Act (RCRA) and the New York State Environmental Conservation Law. Although the hazardous emissions dust was placed in the related landfill prior to the effective date of the RCRA regulations, hazardous leachate continues to be generated anew when rainwater mixes with the emission dust and percolates down into the impoundment. Therefore, the surface impoundment actively "stores" hazardous waste. In addition, the surface impoundment is not exempt from RCRA as a "totally enclosed treatment facility" because it is not directly connected to the industrial production processes, does not treat the leachate while it is being stored, and is not constructed in a manner that prevents the release of the hazardous substances into the environment.

Counsel for Plaintiff
Paul R. Braunsdorf
Harris, Beach, Wilcox, Rubin & Levy
Granite Bldg., 130 E. Main St., Rochester NY 14604
(716) 232-4440

Counsel for Defendants
Beth S. Ginsburg
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Robert Abrams, Attorney General; Michael J. Moore
Department of Law
State Capitol, Albany NY 12224
(518) 474-7330